The health and welfare of women, minors, and unborn children is increasingly at risk in California. State law protects and advances a “right” to abortion at the expense of women considering abortions. In 2013, California was the only state to actually roll back legal protections for women when it enacted a law permitting non-physicians to perform surgical abortions and to administer abortion-inducing drugs.
- The California Supreme Court has found that the state constitution provides a broader right to abortion than does the U.S. Constitution.
- The state has also adopted a Freedom of Choice Act providing a right to abortion even if Roe v. Wade is eventually overturned and specifically providing that “[e]very woman has the fundamental right to choose to bear a child or to choose and to obtain an abortion” and “[t]he state may not deny or interfere with a woman’s right to choose or obtain an abortion prior to the viability of the fetus, or when the abortion is necessary to protect the life or health of the woman.”
- California requires that, prior to an abortion, a woman be informed of the nature of the abortion procedure, possible risks and complications, abortion alternatives, post-procedure medical services, and family planning information.
- A law requiring that a physician have the consent of one parent or a court order prior to performing an abortion on a minor under the age of 18 has been declared unconstitutional by the California Supreme Court.
- California requires abortion clinics meet rudimentary standards for patient care, equipment, and staffing. In 2013, California exempted abortion clinics from many generally applicable building code standards.
- Non-physicians, including nurse practitioners, certified nurse-midwives, or physician assistants, may perform surgical abortions or administer abortion-inducing drugs in California.
- The California Supreme Court has mandated that taxpayers pay for “medically necessary” abortions for women eligible for state medical assistance. This requirement essentially equates to funding abortion-on-demand in light of the U.S. Supreme Court’s broad definition of “health” in the context of abortion.
- Grants made by the “Adolescent Family Life Program” may not be expended for abortions, abortion referrals, or abortion counseling.
- Family planning grants may not be used for abortions or services ancillary to abortions.
- California provides direct funding to pregnancy resource centers.
- California protects “freedom of access” to abortion clinics and has established procedures for investigating “anti-reproductive-rights crimes” under its Reproductive Rights Law Enforcement Act.
Legal Recognition and Protection of Unborn and Newly Born:
- Since 1970, California law has defined the killing of an unborn child after the embryonic stage (7-8 weeks of gestation) as a form of homicide.
- The state allows a wrongful death (civil) action only when an unborn child is born alive following a negligent or criminal act and dies thereafter.
- The state has created a specific affirmative duty of physicians to provide medical care and treatment to infants born alive at any stage of development.
- California maintains a “Baby Moses” law, under which a mother or legal guardian who is unable to care for a newborn infant may anonymously and safely leave the infant in the care of a responsible person at a hospital, police station, fire station, or other prescribed location.
- California funds drug treatment programs for pregnant women and newborns.
- California funds and protects the “right” to engage in destructive embryo research and human cloning by state constitutional amendment.
- California bans cloning-to-produce-children, but explicitly allows cloning-for-biomedical-research, making it a “clone-and-kill” state.
- California allows research on “fetal remains.”
- The state promotes ethical forms of research, tasking the University of California with developing a plan to establish and administer an “Umbilical Cord Blood Collection Program” for the purpose of collecting units of umbilical cord blood for use in transplantation. The state also conducts an “Umbilical Cord Blood Awareness Campaign” to disseminate information about cord blood banking options.
- California regulates assisted reproductive technologies, including specifically requiring that a patient be provided information on embryo donation.
- The state requires that any advertising for egg donors (for fertility treatments) contain a statement that “there may be risks associated with human egg donation.” Moreover, no human eggs may be sold for “valuable consideration,” which does not include reasonable payment for the removal, processing, disposal, preservation, quality control, and storage of the eggs.
End of Life Laws:
- California expressly prohibits assisted suicide. In 1996, the Ninth Circuit Court of Appeals upheld the felony charge that accompanies this prohibition.
- In 2008, the state enacted a measure that requires physicians to provide end of life counseling to patients.
- California has amended its medical school curriculum requirements to include instruction on pain management and end-of-life issues.
Healthcare Freedom of Conscience Laws:
Participation in Abortion and Contraception:
- California currently provides legal protection for individual healthcare workers and private healthcare institutions that conscientiously object to participating in abortions. Protection also extends to medical and nursing students. However, this protection does not apply in “medical emergencies.”
- The state provides some protection for the conscience rights of pharmacists and pharmacies.
Health insurance plans that provide prescription coverage must provide coverage for contraception. The requirement includes an exemption so narrow it precludes the ability of most employers and insurers with moral or religious objections from exercising it.
Participation in Research Harmful to Human Life:
- California currently provides no protection for the rights of healthcare providers who conscientiously object to participation in human cloning, destructive embryo research, or other forms of medical research, which violate a provider’s moral or religious belief.
What Happened in 2013:
- California enacted a law permitting nurse practitioners, certified nurse-midwives, and physician assistants to perform surgical abortions and administer abortion-inducing drugs.
- It also enacted a measure exempting abortion clinics from generally applicable building code standards.
- California indefinitely extended its Reproductive Rights Law Enforcement Act. The California Senate adopted a resolution urging the federal government to protect and uphold the intent and substance of Roe v. Wade.
- California enacted a measure related to insurance coverage of assisted reproductive technologies.
- Governor Jerry Brown vetoed a measure that would have permitted the commodification of women by allowing women harvesting their eggs to be compensated for their time in the same manner as other research subjects.
- California considered a measure to require specified facilities for the elderly to provide a person with a Physician Orders for Life-Sustaining Treatment (POLST) form upon admission to the facility.
Recommendations for California:
Women’s Protection Project Priorities:
- Women’s Health Defense Act (5-month abortion limitation)
- Reflection period for abortion
- Women’s Health Protection Act (abortion clinic regulations)
- Abortion-Inducing Drugs Safety Act
- Parental Notification for Abortion Act (or parental notice voter initiative)
- Child Protection Act
- Abortion Mandate Opt-Out Act
- Coercive Abuse Against Mothers Prevention Act
- State Constitutional Amendment (providing that there is no state constitutional right to abortion)
- Repeal of State FOCA
- Defunding the Abortion Industry and Advancing Women’s Health Act
- Women’s Ultrasound Right to Know Act
- Prenatal Nondiscrimination Act
- Joint Resolution Commending Pregnancy Resource Centers
Legal Recognition and Protection for the Unborn:
- Unborn Wrongful Death Act
- Amend fetal homicide law to protect unborn from conception
- Statutory prohibition on wrongful birth and wrongful life lawsuits
- Pregnant Woman’s Protection Act
- Constitutional amendment banning state funding for human cloning and destructive embryo research
Healthcare Freedom of Conscience:
- Healthcare Freedom of Conscience Act